IN THE CASE OF:  

		BOARD DATE:  12 May 2015

		DOCKET NUMBER:  AR20140011964 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests:

* reinstatement to the Fiscal Year (FY) 12 Lieutenant Colonel (LTC) Promotion Selection List with a date of rank (DOR) of 1 June 2013
* removal of the Promotion Review Board (PRB) results and the orders revoking his promotion to LTC from his Official Military Personnel File (OMPF)
* correction of his DD Forms 214 (Certificate of Release or Discharge from Active Duty) ending 31 August 2013 and 12 April 2014 to show his rank/pay grade as LTC/O-5 and DOR as 1 June 2013
* paying him any back pay and allowances due him

2.  The applicant states that an unjust Relief for Cause (RFC) Officer Evaluation Report (OER) was placed in his OMPF.  That triggered a PRB and the Secretary of the Army reviewed the PRB and removed him from the LTC Promotion Selection List.  He successfully appealed the RFC OER and it was removed from his OMPF.  Promotion reconsideration was warranted and automatically submitted to a Special Selection Board (SSB).  The Army G1 returned the SSB packet without action and he was directed by the U. S. Army Human Resources Command (HRC) to petition the Army Board for Correction of Military Records (ABCMR) to correct the injustice.

3.  In a 17 March 2015 email to the staff of the ABCMR, the applicant states he was informed by HRC that he was selected for promotion by the FY15 Chaplain Promotion Board.  He was advised the ABCMR could recommend reinstatement on the FY 12 LTC Promotion List and adjust his LTC DOR to 1 June 2013.   

4.  The applicant provides:

* an extract of the FY15 LTC Chaplains Selection Board Results showing he was selected for promotion
* DA Form 67-9 (OER) for the period 13 October 2012 through 31 March 2014
* HRC memorandum, subject:  Evaluation Report Appeal, dated 
21 December 2012, with his appeal documentation
* HRC memorandum, subject:  PRB Results, dated 28 February 2013, with supporting documentation
* Army Review Boards Agency memorandum, subject:  OER Appeal, dated 16 September 2013
* HRC Officer Special Review Board (OSRB) memorandum, subject:  Evaluation Report Appeal, dated 16 September 2013, with his appeal documentation
* LTC promotion orders, dated 21 May 2013, with a 10 June 2013 revocation order
* Meritorious Service Medal for 12 June 2010 to 31 August 2013
* orders showing he was appointed as a major (MAJ), Chaplain (CH) Corps, Hawaii Army National Guard (HIARNG)
* his application for Federal Recognition as a MAJ in the CH Corps
* DA Form 1059 (Service School Academic Evaluation Report) showing he completed the Chaplain Officer Basic Course on 11 April 2014
* his Officer Record Brief (ORB), dated 5 August 2012
* his Résumé of Service Career
* DD Forms 214 ending 30 August 2004, 31 August 2013, and 12 April 2014
* Email, subject:  SSB Update 

CONSIDERATION OF EVIDENCE:

1.  The applicant is now a LTC, CH, in the Hawaii Army National Guard (HIARNG).

2.  With previous active duty service, the applicant entered active duty on 13 May 2005 as a Regular Army (RA) commissioned officer in the Adjutant General Corps.  On 2 August 2006 he was promoted to MAJ.

3.  The applicant was selected for promotion by the FY12 LTC Promotion Board.

4.  In 2011, the applicant served as a Brigade S1 in a unit located at Fort Richardson, Alaska.  Around May 2011 his rater changed.  Prior to that time, the applicant’s OERs had been generally good.   On 2 December 2012, the applicant received a Relief of Cause OER from his new rater.  The rater stated the applicant failed to perform his duties to standard and lacked the mental desire to succeed.  The applicant’s senior rater endorsed this assessment with a "Below Center of Mass" rating.

5.  The applicant’s records went before the FY12 LTC promotion board without the referred OER.  That board selected the applicant for promotion to LTC.  After Senate confirmation, the applicant received orders with a promotion date of 
1 June 2013.  However, the referred OER triggered a PRB.  Upon review of the OER and the applicant’s rebuttal, the Secretary of the Army elected to remove the applicant from the promotion list.  On 10 June 2013, the Army revoked the applicant’s promotion orders.  Since the applicant had been selected for promotion by the FY12 board, his records were not considered by the FY13 Force Sustainment LTC board.  

6.  On 3 September 2012, he appealed the RFC OER and on 21 December 2012 the Army Special Review Board notified him that the evidence he submitted justified modification of the report.  A modified report was filed in his OMPF.  

7.  The applicant was discharged from the RA on 31 August 2013 and transferred to the HIARNG.  On 31 December 2013, he was appointed as a MAJ in the HIARNG as a Chaplain.  He was promoted to LTC effective 20 February 2015.  

8.  On 29 November 2012, the OSRB granted the applicant partial relief by removing the rater’s comments from his referred OER.  The board did not remove the senior rater’s comments.  The board based its action largely on a 
22 March 2013 Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation and a 1 May 2013 Commander’s Inquiry that substantiated allegations the rater created a toxic command environment.  The reports confirmed claims that the rater specifically targeted the applicant for disparate and unfair treatment.  On 22 August 2013, the OSRB granted the applicant’s reconsideration request by removing the referred OER from his OMPF.  However, HRC determined it could not grant promotion reconsideration for the FY12 board or reinstate the applicant to the promotion list.

9.  On 16 September 2013, the OSRB notified him that his second appeal of the RFC OER was fully granted.  The RFC OER was to be removed from his OMPF and a nonrated statement added in its place.  The OSRB further determined that promotion reconsideration was warranted.
10.  On 2 June 2014, Mr. J____ K. D____, from HRC Officer Promotions, stated in an email to the applicant:

Your SSB case has been returned to us from G-1 without action.  OTJAG [Office of the Judge Advocate General] stated the results of your SSB are legally objectionable based on your prior consideration and selection from the FY12 LTC ARMY promotion selection board, and should not have taken place as there is no authority to conduct an SSB for this board.  If you had been omitted from your next regular convening board, we could have done an SSB for that.  However, your transfer to the Chaplain Corps was before the FY14 LTC RC CH board so you were not omitted or eligible for any mandatory board.  At this point we see your only option as going back to ARBA and requesting that you be re-instated on the original promotion list for FY12 LTC ARMY board.  If you were a non-select and the board saw your RFC OER, you would qualify for an SSB.  However, because you were selected, you don't.

11.  A National Guard Bureau (NGB) memorandum, subject:  Promotion as a Reserve Commissioned Officer of the Army, dated 18 March 2015, announced the applicant's promotion to LTC in the Army National Guard of the United States (ARNGUS) with an effective date and DOR of 20 February 2015.

12.  Departments of the Army and Air Force, NGB, Special Orders Number 57 AR, dated 18 March 2015, announced Federal recognition was granted to the applicant for his promotion to LTC with an effective date of 20 February 2015. 

13.  Title 10, U.S. Code (USC), section 628 (Special Promotion Boards) (a) provides:

(1) If the Secretary of the military department concerned determines that because of administrative error a person who should have been considered for selection for promotion from in or above the promotion zone by a promotion board was not so considered…the Secretary shall convene a special selection board under this subsection to determine whether that person (whether or not then on active duty) should be recommended for promotion.
  
(2) A special selection board convened under paragraph (1) shall consider the record of the person whose name was referred to it for consideration as that record would have appeared to the board that should have considered him.  That record shall be compared with a sampling of the records of those officers of the same competitive category who were recommended for promotion, and those officers who were not recommended for promotion, by the board that should have considered him.
  	
(3) If a special selection board convened under paragraph (1) does not recommend for promotion a person whose name was referred to it for consideration for selection for appointment to a grade other than a general officer or flag officer grade, the person shall be considered to have failed of selection for promotion.

14.  Title 10, USC, section 629 (e) (Removal from a List of Officers Selected for Promotion) Continued Eligibility for Promotion, provides:

(1) An officer whose name is removed from a list under subsection (a), (b), or (c) continues to be eligible for consideration for promotion.  If he is recommended for promotion by the next selection board convened for his grade and competitive category and he is promoted, the Secretary of the military department concerned may, upon such promotion, grant him the same date of rank, the same effective date for the pay and allowances of the grade to which promoted, and the same position on the active-duty list as he would have had if his name had not been so removed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be reinstated to the FY12 LTC Promotion Selection List with a DOR of 1 June 2013; the PRB results and the orders revoking his promotion to LTC should be removed from his OMPF; his DD Forms 214 ending 31 August 2013 and 12 April 2014 should be corrected to show his rank/pay grade as LTC/O-5; and he should receive back pay and allowances.

2.  The applicant is not eligible for an SSB for the FY12 promotion board because he was considered by that board.  By virtue of his removal from the FY12 promotion list, the applicant was eligible for consideration by the FY13 board.  However, since his removal came after the FY13 board met, his name was not considered.  

3.  The Board may not reinstate the applicant on the FY12 promotion list.  The action by the Secretary of the Army to remove him from that list rendered the promotion void.  As such, his request to be reinstated to the FY12 LTC Promotion List with a DOR of 1 June 2013, removal of the PRB-related documents from his OMPF, correction of the DOR's on his DD Forms 214, and paying him back pay and allowances should be denied.

4.  The Board may grant the applicant an SSB using the FY13 criteria.  If selected by an SSB for promotion under the FY13 criteria, the Secretary may then grant him a DOR of 1 June 2013, the date established after the FY12 selection, under the provisions of 10 USC 629 (e).

5.  In view of the above and in the interest of justice, it would be appropriate to grant the applicant partial relief in the form of an SSB for FY13.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___ GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  submitting the applicant’s records to a duly-constituted SSB for consideration for promotion to LTC under the applicable FY13 criteria. 

	b.  If the applicant is selected for promotion his records be further corrected by promoting him to LTC and assigning him an effective date and DOR of 1 June 2013, and with all due back pay and allowances.

	c.  That if not selected, the applicant be so notified.

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to reinstating him to the FY12 LTC Promotion List with DOR of 1 June 2013, removal of the PRB-related 


documents from his OMPF, correction of the DOR's on his DD Forms 214, and paying him back-pay and allowances.



      _______ _   X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20130017226



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ABCMR Record of Proceedings (cont)                                         AR20140011964



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